general conditions for fumigation and pest control services

GENERAL CONDITIONS FOR FUMIGATION AND PEST CONTROL
SERVICES
1. GENERAL
a) Unless otherwise agreed in writing
and except where they are at variance
with (i) the regulations governing services
performed on behalf of governments,
government bodies or any other public
entity or (ii) the mandatory provisions of
local law, these General Conditions for
Fumigation and Pest Control Services
(“these General Conditions”) apply to
all offers or services and all resulting
contractual relationships between
any of the affiliated companies of
SGS SA or any of their agents (each a
“the Company”) and any persons or
entities (private, public or governmental)
issuing instructions (the “Client”)
(the “Contractual Relationship(s)”) in
connection with the following services: a)
fumigation of agricultural products loaded
on any transportation means or stored in
open-air warehouses or industrial plants,
b) services in relation with disinfection
and pest control, c) sale and delivery
of fumigants and pest control related
products (the “Services”).
b) Unless the Company receives prior
written instructions to the contrary from
the Client, no other party is entitled
to give instructions, particularly on the
scope of the services or the delivery of
fumigation and/or pest control reports
or certificates resulting therefrom
(each a “Report of Intervention”). The
Client hereby irrevocably authorises the
Company to deliver Reports to a third
party where so instructed by the Client or,
at its discretion, where it implicitly follows
from circumstances, trade custom, usage
or practice.
2. DELIVERY OF FUMIGANTS AND
PRODUCTS
a) The Company will sell and arrange
for delivery of fumigant(s) and pest
control related products (together the
“Products”) in the quantity required at the
location indicated by the Client.
b) The Company shall not be liable for any
delay or failure to deliver the fumigants in
accordance with the Client’s instructions,
if such delay or failure to deliver is the
result of events outside the control of the
Company
c) The Company shall ensure that
the Products to be delivered to the
Client are packaged and transported
in accordance with the manufacturers’
recommendations. It is agreed that
the Company does not make any
representation or warranty regarding the
quality of the Products delivered and the
Company obligation to the Client in this
respect shall be limited to assigning to
the Client any rights the Company may
have against the manufacturers.
3. PROVISION OF FUMIGATION AND PEST
CONTROL SERVICES
a) The Company will exercise reasonable
care and skill in the performance of the
Services on the basis of the information
provided by the Client or, in the absence
of such instructions:
1. the terms of any standard order form
or standard specification sheet of the
Company; and/or
2. any relevant trade custom, usage or
practice; and/or
3. such methods as the Company
shall consider appropriate on technical,
operational and/or financial grounds.
b) On the basis of information supplied by
the Client, the Company will advise on the
appropriate quantity and type of Products
and on an appropriate method and
adequate period of exposition to be used
to treat a particular cargo or premises.
c) When requested by the Client, the
Company will apply the Products to the
cargo or premises to be treated.
d) Should the Client request that the
Company witnesses any third party
intervention, the Client agrees that
the Company’ sole responsibility is
to be present at the time of the third
party’s intervention and to forward the
results, or confirm the occurrence, of
the intervention. The Client agrees that
the Company is not responsible for the
condition or calibration of apparatus,
instruments and measuring devices used,
the methods applied, the qualifications,
actions or omissions of third party
personnel or the fumigation and/or pest
control results.
e) The Company may delegate the
performance of all or part of the
services to an agent or subcontractor
and the Client authorises the Company
to disclose all information necessary
for such performance to the agent or
subcontractor.
f) When requested to issue a report, the
Company will issue, to the sole benefit
of the Client, a Report of Intervention
describing the procedures performed by
or witnessed by the Company.
g) Reports of Intervention issued by the
Company will reflect the intervention
performed and the facts as recorded
by it at the time of its intervention only
and within the limits of the instructions
received or, in the absence of such instructions, within the limits of the alternative parameters applied as provided for
in clause 3(a). The Company is under no
obligation to refer to, or report upon, any
facts or circumstances which are outside
the specific instructions received or alternative parameters applied.
h) Should the Company receive documents reflecting engagements contracted
between the Client and third parties or
third party documents, such as copies of
sale contracts, letters of credit, bills of
lading, etc., they are considered to be for
information only, and do not extend or
restrict the scope of the Services or the
obligations accepted by the Company.
i) The Client acknowledges that the Company, by providing the Services, neither
takes the place of the Client or any third
party, nor releases them from any of
their obligations, nor otherwise assumes,
abridges, abrogates or undertakes to
discharge any duty of the Client to any
third party or that of any third party to the
Client.
j) All samples shall be retained for a maximum of 3 months or such other shorter
time period as the nature of the sample
permits and then returned to the Client or
otherwise disposed of at the Company’s
discretion after which time the Company
shall cease to have any responsibility for
such samples. Storage of samples for
more than 3 months shall incur a storage
charge payable by the Client. The Client
will be billed a handling and freight fee
if samples are returned. Special disposal charges will be billed to the Client if
incurred.
k) In the event the Company is required to
perform other services, including inspection, sampling and testing of the cargo,
such other services shall be performed for
an additional remuneration and in accordance with the SGS General Conditions
of Service available upon request (as well
as on the webpage: http://www.sgs.com/
terms_and_conditions.htm).
4. OBLIGATIONS OF THE CLIENT
5. FEES AND PAYMENT
The Client will:
a) fully and accurately inform the Company in advance and ensure that sufficient
information, instructions and documents
are given to the Company in due time
(and, in any event not later than 48 hours
prior to the desired intervention) to enable
the required services to be performed,
notably about (1) the cargo or premises
to be treated, (including but not limited
to quantity, origin, conditions, nature of
known infestation, history of previous
treatments) and (2) the technical specifications of the vessel or premises where
the services are intended to be performed. The Client represents and warrants
to the Company that all information given
to the Company is correct, complete and
accurate;
a) Fees not established between the
Company and the Client at the time the
order is placed or a contract is negotiated
shall be at the Company’s standard rates
(which are subject to change) and all applicable taxes shall be payable by the Client.
b) procure all necessary access for
the Company’s representatives to the
premises where the services are to be
performed and take all necessary steps
to eliminate or remedy any obstacles to,
or interruptions in, the performance of the
services;
c) supply, if required, any special equipment and personnel necessary for the
performance of the services.
d) ensure that all necessary measures are
taken for safety and security of working
conditions, sites and installations during
the performance of services, and will not
rely, in this respect, on the Company’s
advice whether required or not, except for
ensuring that the Company’s guidelines
in relation to health and safety, period of
exposition to fumigants, ventilation and
re-circulation of the cargo are complied
with;
e) inform the Company in advance of
any known hazards or dangers, actual or
potential, associated with any order or
samples or testing including, for example,
presence or risk of radiation, toxic or
noxious or explosive elements or materials, environmental pollution or poisons;
f) fully exercise all its rights and discharge
all its liabilities under any relevant sales
or other contract with a third party and at
law.
The Company shall not accept any
responsibility for the consequences that
may result from the failure of the Client
to comply with its obligations as per this
section 4.
b) Client will promptly pay not later than
30 days from the relevant invoice date
(the “Due Date”) all fees due to the Company failing which interest will become
due at the rate of 3 (three) times the rate
of legal interest from the due date until
payment is made and a fixed penalty for
collection costs of 40 euros.
c) The Client shall not be entitled to retain
or defer payment of any sums due to
the Company on account of any dispute,
counter claim or set off which it may
allege against the Company.
d) The Company may elect to bring action
for the collection of unpaid fees in any
court having competent jurisdiction.
e) The Client shall pay all of the Company’s collection costs, including attorney’s
fees and related costs.
f) In the event any unforeseen problems
or expenses arise in the course of
carrying out the services the Company
shall endeavour to inform the Client and
shall be entitled to charge additional fees
to cover extra time and cost necessarily
incurred to complete the services.
g) If the Company is unable to perform all
or part of the services for any cause whatsoever outside the Company’s control
including failure by the Client to comply
with any of its obligations provided for in
clause 4 above the Company shall nevertheless be entitled to payment of:
1. the amount of all non-refundable
expenses incurred by the Company; and
2. a proportion of the agreed fee equal
to the proportion of the services actually
carried out.
6. CHANGES OR CANCELLATION OF AN
ORDER
a) The Client shall pay additional costs and
shall bear the risks of delay in the event
that the Client requires that the Services
be supplied at a different location than
originally agreed or otherwise changes
the instructions originally given to the
Company.
b) If for whatever reason the Client
cancels the order, the Client shall pay to
the Company a portion of the agreed fee
corresponding to the Services actually
carried out by the Company prior to the
cancellation of the order. Should such
termination occur after the Company has
placed an order with a contractor or third
party, then the Client shall fully indemnify
the Company for the related expenses.
7. SUSPENSION OR TERMINATION OF
SERVICES
The Company shall be entitled to
immediately and without liability either
suspend or terminate provision of the
services in the event of:
a) failure by the Client to comply with
any of its obligations hereunder and such
failure is not remedied within 10 days that
notice of such failure has been notified to
the Client; or
b) any suspension of payment,
arrangement with creditors, bankruptcy,
insolvency, receivership or cessation of
business by the Client.
8. LIABILITY
a) Limitation of Liability:
1. Unless specifically agreed in writing
by the Company, the Company does not
make any representation or warranty that
the cargo or premises treated will be
free from live insects or infestation after
the provision of the Services. The Client
understands and agrees that insects
sometimes become resistant and are not
affected by the fumigation.
2. The Company is neither an insurer
nor a guarantor and disclaims all liability
in such capacity. The Clients seeking a
guarantee against loss or damage should
obtain appropriate insurance.
3. Reports of Intervention are issued
on the basis of information, documents
and/or samples provided by, or on behalf
of, the Client and/or developed based
on the intervention of the Company
and solely for the benefit of the Client
who is responsible for acting as it sees
fit on the basis of such Reports of
Intervention. Neither the Company nor
any of its officers, employees, agents or
subcontractors shall be liable to the Client
nor any third party for any actions taken
or not taken on the basis of such Reports
of Intervention nor for any incorrect
results arising from unclear, erroneous,
incomplete, misleading or false
information provided to the Company.
4. The Company shall not be liable
for any delayed, partial or total nonperformance of the Services arising
directly or indirectly from any event
outside the Company’s control including
failure by the Client to comply with any of
its obligations hereunder.
5. The liability of the Company in
respect of any claim for loss, damage or
expense of any nature and howsoever
arising shall in no circumstances exceed a
total aggregate sum equal to 10 times the
amount of the fee paid in respect of the
specific service which gives rise to such
claim or US$20,000 (or its equivalent in
local currency), whichever is the lesser.
6. The Company shall have no liability
for any indirect or consequential loss
including without limitation loss of profits,
loss of business, loss of opportunity, loss
of goodwill and cost of product recall.
It shall further have no liability for any
loss, damage or expenses arising from
the claims of any third party that may be
incurred by the Client.
7. The Client understands and agrees
that gas free/gas residues issues that
may arise in the port of arrival are not
related to the fumigation or other services
provided by the Company but to nature’s
laws and some authorities’ measuring
approaches. The Client shall not hold the
Company responsible for these gas free/
gas residues issues, nor for the related
delays/demurrages.
8. In the event of any claim, the Client
must give written notice to the Company
no later than 20 days after the Services
have been rendered or within 5 days after
the vessel has reached its destination
and, in any case, the Company shall be
discharged from all liability for all claims
for loss, damage or expense unless suit is
brought within one year from:
(i) the date of performance by the
Company of the service which gives rise
to the claim; or
(ii) the date when the service should
have been completed in the event of any
alleged non-performance.
b) Indemnification: the Client shall
guarantee, hold harmless and indemnify
the Company and its officers, employees,
agents or subcontractors against all
claims (actual or threatened) by any
third party for loss, damage or expense
of whatsoever nature including all
legal expenses and related costs and
howsoever arising relating to the
performance, purported performance or
non-performance, of any services.
9. MISCELLANEOUS
a) If any one or more provisions of these
General Conditions are found to be illegal
or unenforceable in any respect, the
validity, legality and enforceability of the
remaining provisions shall not in any way
be affected or impaired thereby.
b) During the course of providing the
services and for a period of one year
thereafter the Client shall not directly
or indirectly entice, encourage or make
any offer to the Company’s employees
to leave their employment with the
Company.
c) Use of the Company’s corporate
name or registered marks for advertising
purposes is not permitted without the
Company’s prior written authorisation.
10. APPLICABLE LAW AND JURISDICTION
© SGS Group Management SA - 2013 - Tous droits réservés - SGS est une marque déposée de SGS Group Management SA
All disputes arising out of or in connection with the Contractual Relationship(s)
hereunder shall be governed by and
construed in accordance with the laws of
France exclusive of any rules with respect
to conflicts of laws. All those disputes
shall be submitted to the exclusive jurisdiction of the competent courts of the
location of the registered offices of the
Company.
SGS EST LE LEADER MONDIAL DE L’INSPECTION DU CONTRÔLE, DE L’ANALYSE ET DE LA CERTIFICATION.